【作者】 刘沛谞；

【导师】 李永升；

【作者基本信息】 西南政法大学 ， 刑法学， 2009， 博士

【摘要】 宽严相济刑事政策自提出以来,业已成为刑事法学界及司法实务界一个颇为热门的话题,在近年来公开出版的刑事法学术文献中,冠以宽严相济字眼抑或以之为论题的占有相当比重,有影响力的学术研讨会也相继召开。应当看到,宽严相济政策相关研究已经取得了很多可观的成果,其中,理论界与实务界的贡献略有疏别:前者的成果主要体现在结合一般刑事政策理论,对宽严相济政策的内涵、源流、定位、实质、价值及与既往刑事政策形态的关系等范畴进行探究,学理和思辨色彩较为浓郁;后者的贡献主要体现在如何对现行程序设计和司法体制进行改良,抑或创设新的制度、机制,从而更好地践行宽严相济精神。当然,两种风格的研究也不乏共通之处,比如都重视宽严相济政策与刑事法律规范体系的辩证关系,并对现行刑事实体法和刑事程序法提出各种修改建言。此外,也不乏兼具理论性与实践性的结合型研究成果。文章对宽严相济政策的进一步研究离不开现有成果奠定的基石,在此特向各位学术前辈和学界同仁致以诚挚的谢意!现将文章的体系框架和论证层次陈述如下:第一章主要是为后文正式介入对宽严相济政策本体的研究做好必要的知识铺垫。首先,宽严相济政策作为一项实然刑事政策形态,存在于真实的社会场景之中,其理论谱系与践行机制的具体展开不能脱离国家、社会、权力、公共政策等背景性因素而孤立存在。对宽严相济政策与上述范畴之间的相互关系与共生机制给予必要关照,通过将其置于一个广阔的人文社会背景中,使我们得以超然于刑事政策之上、之外来审视宽严相济,从而有助于获得更多客观、合理的认知。其次,刑事政策的一般性理论、原理乃是研究任何实然刑事政策形态的逻辑起点,宽严相济政策也应当是一般刑事政策的话语体系在特定历史阶段与特殊国情下的实然化、具体化。因此,澄清刑事政策的一般概念与基本类型划分是十分必要的。再次,和谐社会是宽严相济政策提出、研究、实施的具体语境,对和谐社会的本质、属性、特征进行研究有助于把握刑事法治对于和谐秩序形成的重要性以及构建和谐社会对刑事政策选择的应然要求,从而与后文进一步论证在和谐社会语境中确立宽严相济政策的必要性形成照应。第二章正式切入对宽严相济刑事政策本体的研究。从历史的纵向考量,虽然宽严相济政策是近年来才由决策层提出的一项新兴的实然刑事政策形态,然而作为其观念基更多还原

【Abstract】 Since the criminal policy of temper justice with mercy was put forward,it has become a hot topic in both theory circle and practice circle.About which,many academic conferences have been held and much academic literature has been published.It should be recognized that current research about the criminal policy of temper justice with mercy has made many significant achievements,but we should pay enough attention to some valuable problems that existing in the current research,such as:we haven’t reached consensus as for some major theoretical issues;what research perspective is relatively scientific and reasonable;is the criminal policy of temper justice with mercy a specific criminal justice one or a basic one;the relationship between the criminal policy of temper justice with mercy and the previous ones; the relationship between the value of tolerance and the value of severity inside the criminal policy of temper justice with mercy;the research on the mechanism to implement the criminal policy of temper justice with mercy is relatively fragmented and non-systematic.To do further study will be helpful to upgrade the level of research of the criminal policy of temper justice with mercy and make it perform better.The system and structure of this dissertation is listed as flow:The first chapter is meant to pave the way to do a good job for the below.Firstly, criminal policy exists in a macro-social structure.Many areas emerge as the premises of criminal policy,such as state,society,power,public policy and so on.Putting criminal policy in a wide and profound social background enhances our understanding about it.Both state and society are the specific backgrounds of criminal policy.The key factor which supports acts of state is power,which is indispensable for a state to manage the society more effectively and efficiently.A state’s managing activity is a complete process involving forecasting, decision-making,implementation,control,evaluation and adjustment,among which decision-making is of special importance in that it is transitional.When a state or a ruling party becomes the subject of decision-making,political factor is involved in the process of decision-making.At this time,we can call this type of decision-making policy or public policy,which is a class concept.Undoubtedly,criminal policy is one type of public policy. Secondly,the common theories and principles are the logic starting-points of research on the criminal policy of temper justice with mercy.Thus,it’s necessary to give a definition of the criminal policy and classify it correctly.Thirdly,the Socialist Harmonious Society is the specific background in which the criminal policy of temper justice with mercy was raised, established and studied,so it’s also necessary to study the nature,attribute and features of the Socialist Harmonious Society.Through which,we are able to understand that which type of criminal policy is suitable for the Socialist Harmonious Society.From the second chapter,the dissertation began to study the criminal policy of temper justice with mercy formally.From the historical perspective,though the criminal policy of temper justice with mercy was put forward recently,the spirit of temper justice with mercy as the conceptual cornerstone of which has far-reaching historical precipitation and practical heritage in our country.A good understanding about excellent legal culture and tradition will be good to current practice.From the special perspective,the practice of criminal policy in the western main nations and recent practice in the Taiwan Province enjoy many similarities with the criminal policy of temper justice with mercy.To track their research and practice and draw on the advantages will be helpful to ours.After the macro inspection,the dissertation enumerated and evaluated different definitions on the criminal policy of temper justice with mercy.And then,the dissertation gave a definition to the criminal policy of temper justice with mercy:it is an integrated system which requires us to treat varieties of criminal acts and criminals in a tolerant way or a severe one according to different situations;the core of the system is to use criminal power reasonably and the way is through criminal law,criminal procedural law,criminal implementation law and so on;the purpose of which is in order to defense the community,protect the human rights and promote the social harmony.There are some meaningful categories about criminal policy such as basic criminal policy and specific criminal policy,criminal legislative policy,criminal justice policy, criminal execution policy and criminal interpretation policy,severe criminal policy and moderate criminal policy,criminal policy for criminals and criminal policy for crimes.The dissertation proposes that the criminal policy of temper justice with mercy should be a basic criminal policy in the territory of Chinese criminal rule of law in that its attribute,features and functions enable it to be.The necessity of putting forward and establishing the criminal policy of temper justice with mercy embodies mainly in the below aspects:firstly,it is the ideal substitute for the previous criminal policies;secondly,it is helpful to form harmonious social atmosphere;thirdly,it is on behalf of scientific cognition of criminal laws;fourthly,it is in line with the basic rules of legal economics;finally,it conforms to the trend of the world’s criminal rule of law.Theoretic research is a weak link in the present research,about which the third chapter concerns.The theoretic foundations of the criminal policy of temper justice with mercy includes three aspects,they are philosophical foundation,value foundation and methodology foundation.First of all,the philosophical foundation of this criminal policy is composed of materialism and dialectics,specifically speaking,several philosophical rules embody in this criminal policy,such as material determines consciousness,moving is the fundamental attribute of material and the rule of contradiction.Secondly,since the basic pursuit of the Socialist Harmonious Society is people-oriented,the legal concept of humanism should be adhered to in the territory of rule of law.Then we came to the conclusion that humanism is the value foundation of this criminal policy.That is,looking on anyone who enters into the criminal legal relations as a purpose,not a tool.Thirdly,the criminal integration constitutes the methodology foundation of this criminal policy,which is a new research mode in the criminal law.The new methodology would do good to eliminating the barriers between different criminal disciplines,promoting effective communication and dialogues and realizing integrated research of criminal science.To sum up,the above three foundations prove the reasonableness of the criminal policy of temper justice with mercy.The purpose of the fourth chapter is to choose a relatively correct research path and establish a new theoretic mode,which could guide the practice of criminal policy and the criminal rule of law.Several approaches exist in the domestic academic circle,such as theoretical study,specific study,historical study,comparative study,virtual study and so on, most of which are valuable to the overall study of the criminal policy of temper justice with mercy.Besides,two obvious errors emerged in the present research:one is the trend of generalization,that is,regarding this criminal policy as a box and thinking that it can deal with any problem in the criminal rule of law;the other is the trend of absolutization,that is either be tolerant or be severe and there’s no the third path.The dissertation suggests that to be moderate is just the third path which exists between to be tolerant and to be severe.The new theoretic mode this dissertation prefers covers seven basic elements,namely, policy subject,policy approach,policy cornerstone,policy essence,policy object,policy stage and policy bottom line.The policy subject includes two types,one refers to the ruling party who enacts and adjusts the criminal policy and the other is the highest legislative,judicial and executive organs.The policy cornerstone refers to the criminal power which confers legitimacy and authority upon the criminal policy of temper justice with mercy.Two approaches are available for us to implement this criminal policy.One is to abide by all the present criminal laws,namely,to abide by the principle of a legally prescribed punishment for a specified crime and the principle of due process,and the other is to be consistent with science and democracy.The policy essence is to classify all the criminal acts and criminals and to treat them differentiatedly.The policy object aims at clarifying that who should get tolerance and who get severity and how to put tolerance and severity into practice.As for the policy stage,the criminal legislation,the criminal justice,the criminal implementation and the criminal interpretation are involved,which constitute an integrated range in which the criminal policy of temper justice with mercy acts.The policy bottom line confers limits on this criminal policy which remind us that both tolerance and severity are relative,not absolute.The last chapter aims at solving the problem that how to apply the above new theoretic mode to the realistic criminal practice.It should be recognized that there are many specific mechanisms and systems which can implement this criminal policy.At the same time,new mechanisms and systems can also be developed.In order to demonstrate how to implement the spirit of temper justice with mercy,this chapter chose five representative and typical mechanisms carefully,they are crime circle,penal system,pre-trial procedures,composite trial-procedure mode,conviction and sentencing.The crime circle is the border between punishment and freedom,which is determined by the highest legislative organs through enacting crimes and abolishing crimes.Criminalization means severity,because the basic human rights will be deprived and restricted.On the contrary,discriminalization means tolerance,in that freedom will be returned to the people. With the change of the social situations and value consciousness,both criminalization and discriminalization are necessary.But never forget that humanism requires that the latter prevailed.The penal system concludes two main aspects,namely,the types of penalties and the implementation approaches.Severe penalties and cruel implementation approaches embody severity and moderate penalties and humane implementation approaches mean tolerance.The aim to improve the penal system is to balance retribution and utility,common prevention and specific prevention.Meanwhile,mitigating the severity degree of the present penal system conforms to the world’s trend. There are two basic types about criminal procedures,namely,pre-trial procedures and trial procedures.The former opens the whole criminal procedure,which includes placing on record,investigation,examination,prosecution,compulsory measures,criminal reconciliation and so on.All the above sub-procedures provide wide space for implementing the criminal policy of temper with mercy.At the trial stage,it would be helpful for implementing this criminal policy to allow varieties of criminal acts and criminals to divert through a composite trial-procedures mode.It means more procedural obligations,less procedural rights and longer trial cycle to divert through the common trial procedures.On the contrary,it means more procedural rights,less procedural obligations and shorter trial cycle to divert through the simple trial procedures. The present trial—procedure mode is relatively single in our country,thus corresponding improvements are necessary.The mission of the people’s courts is to hear cases and after that they must judge whether the defendant is guilty or not.If the defendant is guilty,the judges must determine what criminal sanctions to be adopted to realize the defendant’s criminal responsibility.So we can say that conviction and sentencing are the basic functions of the people’s courts.During the stage of conviction,vague provisions about crimes,justifications and being in favor of the defendant when doubt exists can help the people’s courts to implement the criminal policy of temper justice with mercy.During the stage of sentencing,the legally prescribed circumstances about sentencing,the discretionary circumstances about sentencing and application of the death penalty can assume the same function.更多还原